


\D '''TIT*' A rf^ '<>."* " ,G^ 






;* ^0 













^^ 












>^€^/ .^^ "^o '^^^^^• 



^ V 













"^^o .^^ 

^ -J.*^ 







r ..".. "- 






c" 











• • ' ' \^ 






•^0^ 






^^ 



-ICJ 
















'^-^O'* ."'^s^^ 























ADJUSTMENT OF CLAIMS OF THE 
POTTAWATOMIE INDIANS 

IN WISCONSIN 



H. R. 21219 



COMMITTEE ON INDIAN AFFAIKS 
HOUSE OF REPRESENTATIVES 



1909 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1909 



/..- (..}■ 



r'E 






^ 



ADJUSTMENT OF CLAIMS OF THE POTTAWATOMIE INDIANS IN 

WISCONSIN/ 



Subcommittee of the 
Committee on Indian Affairs, 

House of Representatives^'"^ 
Washington, D. G., Friday, January 29,\L90^. 
The subcommittee met at 10 o'clock a. m. 

Present: Representatives HoyC'-ell (chairman), Morse, and Cravens. 

Present also: Mr. R. V. Belt, of Wasliington, D. C, attorney for 

the Pottawatomie ^dians of Wisconsin and Canada; and Messrs. 

Charles J. Kappler and Charles H. Merillat, of Washington, D. C, 

associate counsel. 

The subcommittee thereupon proceeded to the consideration of 
the bill (H. R. 21219) providing for the adjustment of the claims of 
the Wisconsin band of Pottawatomie Indians for annuities and other 
moneys under treaty stipulations, and for other purposes. 

STATEMENT OF MR. CHARLES H. MERILLAT, OF THE LAW FIRM 
OF KAPPLER & MERILLAT, OF WASHINGTON, D. C. 

Mr. Merillat. Mr. Chairman and gentlemen, we appear as attor- 
neys for what are known as the stray bands^ of Wisconsin Potta- 
watomie Indians, a number of whom are resident in the State of 
W^isconsin at this time, and others of whom have gone to the Domin- 
ion of Canada and are there more or less permanently. We come 
here and ask for the passage of the House bill which you have under 
/consideration, and ask you to make an appropriation of about 
V $457,000 for those Pottawatomie Indians who are now resident in 
Wisconsin; and we ask that you send to the Court of Claims the 
question of the rights of those Indians who emigrated to and are now 
in Canada, with the right of appeal on the part of either party to the 
Supreme Court of the United States. We have made this differen-^ 
tiation not because in our judgment there is any more doubt about 
the rights of those who are in Canada than there is about the rights 
of those who are in Wisconsin, as we have no doubt about the rights 
of either side. We think that as a matter of fact the Supreme Court of 
the United States ancl^he Court of Claims, in what is known as the 
New York Indian case, has settled every question that is now before 
you. We think they, settled that in the New York Indian case, 
although a comparison of the treaty between the New York Indians 
and the United States with the treaty between the Pottawatomie 
Indians and the JJnited States will show you that the Pottawatomie 
case is far stronger than the New York Indian case; because the 

3 



4 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

New York Indian treaty had a provision in it that if the Indians did 
nat-remove, then they shoukl forfeit their rights; whereas in the 
Pottawatomie case there is no provision whatsoever of forfeiture, but 
simply a statement in the tr^ly that these annuities which were 
guaranteed to the tribe as a whole)should be paid west of the Missis- 
sippi River — in other words, a "stipulated place of payment. That 
stipulated place was made, of course, in order to induce the Indians 
to remove. v^ 

^f The Indian Office proceeded, however, yi:n contravention of the 
■treaty rights of these Indians, to declare a forfeiture. It declared and 
worked this forfeiture, refused to make payment to those Indians who 
did not remove west of the Mississippi" River, notwithstanding there 
was no provision of forfeiture expressly or by impliigiilign in the treaty, 
and it paid over to those who did remove the share of those who 
remained in Wisconsin, forfeiting the shares of the latter and overpay- 
ing the others. 

Mr. Morse. Just a moment. Give us the terms of that treaty just 
as simply and shortly as you can. 

Mr. Merillat. I simply wanted to outline our case, and then I was 
going to do exactly that, 

Mr. Cravens. I should like to ask you one question right there. 

Mr. Merillat. Certainly. 

Mr. Cravens. Was the promise of the pa^anent of these annuities 
for the purpose of getting them to remove west of the Mississippi 
River? / 

Mr. Merillat. No, sir. The promise/fif the payment of the aimui- 

ts was in consider atirn cf the cessi< n of the lands that they had in 
isccnsin, and to which it is admitted they had title; but part of 
3se f- rfeited annuities (as I was going to show you when I gave 
you simply at first glance the idea of our case so that you would 
apprehend the points as they would come along severally) were 
guaranteed to these Indians in perpetuity by treaties that had been 
made Icng before this treaty in question — that is, the treaty cf 1833. 
As early as 1795 the Indians made treaties whereb}^ the}" ceded a 
large part (f the present State of Ohio; then they ceded Indiana: 
and thence they were moved west until they stretched around the 
shores of Lake Michigan. The Government cf the United States not 
only proceeded to take their lands from them and in return promised 
them lands west j^ the Mississippi River, and moneys; but when 
they did not remove, the Indian Olfice, because it deemed them 
' recalcitrant, proceeded to forfeit their shares in annuities that had 
been given them fir the cession of these lands in Ohio and in Indiana. 
Not only that; but it did this after Congress had expressly declared, 
I by a positive act passed in 1864, that this acti. n was n t proper, and 
/ directed the Indian Office t'O withhold in the Treasury the numeys 
I that were due to those Indians who had not removed. In other 
words, Congress in (l864' passed a direct act specifically commanding 
the Treasury of the United States and the Indian Office to withhold 
and keep in the Treasury the shares these Indians were entitled to. 
There was not the slightest attention paid to that act of Congress, 
and the Indian Office pro>ceeded to do just what it had always di^ne ; 
and it did that also in the case of the New York Indians. That mat- 
ter of the New York Indians finally came to the courts, and the 
courts decided that the action in forfeiting the rights of these New 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 5 

York Indians who did n< t remove was K(nlawful) The same thino; 
was d lie with the Winnebagoes, and Ongress took hokl ( f that and C 
gave the Winnebagoes their share (act of Jan. 21, 1882; 21 Stat., 1 
315); and we are now here in behalf of the Pottawatomies, asking ) 
that that exact thing be done for thep^j^hjO^Jli^ courts and Congress 
hg.A^e-ji one in parallel cases f-- r the ^JjEw j ; rp Indians and f-r the 
CHj nngbag- e§ > 

Mr. Cravens. These Pottawatomies are the ones that did not 
move — the ones yni represent? 

Mr. Meeillat. These Pottawatomies are the ones that did not 
move. 

Mr. Cravens. I should like to ask you a question right there. 
What part of this $457,000 was provided for prior to the treaty by 
wliich they were to move ? 

Mr. Merillat. I should have to refer you to the statement or 
report that has been st!ibmitted by the Secretary of the Interior, 
alid if that were to be answered absolutely, it would have to be by 
v^alculations that would be based upon that statement. In other 
words, I could not answer the C{uestion offhand; but there is a memo- 
rial here f^m which more or less of this information may be obtained, 
and likewise a report from the department . But upon that point I should 
like to a^ite that the decisio^ of the Supreme Coii^t of the United States i 
was not based upon any question of prior annuities, but was based ( 
upon the fact that the department had forfeited the lands in Kansas 
because of the failure of the Indians toj?6move under the specific 
treaty under which tliis claim of forfeiture was asserted, the treaty 
providing that the Indians should move to lands ir/Kansas, and 
when they refused to move the Government forfeited and sold the 
Kansas lands and was compelled b}" the Supreme Court toQ;eimbure& 
the Indians. So that the New York Indian case of coursei5~trSsed 
purely upon this proposition: That the Government took the quit- 
claim rights that these Indians had iii the Menominee lands in the west, 
largely in Wisconsin, and agreed to give them lands in Kansas on 
condition that they should remove, and also certain money. When 
it came, however, to a question of removin^^ as the treaty had pro- 
vided that the^Xe\v Yorlc Indians should j;^iove, w^&fer^bf the Missis- 
sippi River, 'j nost^ of the Indians declined and refused to remove. 
Thereupon the Indian Office and the Interior Department undertook 
to forfeit the shares of those who did not remove west of the Missis- 
sippi River, and withheld that money from them and sold the western 
lands to settlers. They endeavored to force the Indians to remove. 
They still continued to refuse. Some of them went to Canada and 
some remained in New York State. 

Then the question came U;> in the Supreme Court of the United 
States, Was there a forfeiture of the rights of the New York Indians 
because they did not remove as the treaty had sti'/ulated tliey should 
remove? And the Sui^reme Court, after a thorough and carefu)/(^on- 
sideration of that matter, decided that the forfeiture was illegal. The 
court held this: That that treaty between the United States and the 
New York Indians was a solemn convention/binding on both parties; 
that the treaty amounted to a grant in ]^resenti of the lands west of 
the Mississij)pi River to these Indians; that there was a provision in 
the treaty whereby the United States, through its proper tribunals, 
might, if it chose, have declared a forfeiture, because there was a 



6 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

forfeiture provision in the New York Indian treaty, which there is not 
in the Wisconsin treaty, making the present case much stronger. It 
said, however, that there was simply the right in the United States 
to declare a forfeiture ; that there was no power in an executive officer 
of the United States to have declared this forfeiture ; that as the 
United States never had declared a forfeiture, but had by main 
n/ strength and the power of the executive officers takeiv these lands 
west of the Mississippi, River, sold them and appropr^ted the pro- 
ceeds to such uses as the United States chose and to such Indians as 
did remove, the United States \vas liable to those Indians who did not 
remove for their proportionate share of la nds or money; that the 
Indian title was a communal title, and that^acB Indian was entitled 
to his undivided pxQ rata share of the total amount; and it ascer- 
tained what this'tot^l amount was, and said the United States was 
pliable. ^^ 

You can not read, as I say, this New York Indian decision, and 

, apply it to the facts in this case without inevitably^aying that if the 

I New York Indian decision is correct (and it is an enunciation of the 

I highest tribunal that we have), then these Wisconsin Pottawatomies 

have a much stronger case. 

Mr. Morse. What is the citation to the New York Indian case? 
^^Mr. Merillat. One hundred and seventy United States, page 1. 
^ Mr. Cravens. What is that case? 

Mr. Merillat. The New York Indians v. The United States (170 
U. S., p. 1). It was also tried in the Court of Claims, and is reported 
^in the Court of Claims Decisions — in 30 Court of /Claims; also in 40 
'^ Court of Claims. / 

At this point I should like to review the substantive provisions of 
the Pottawatomie treaty, and then review the provisions 

Mr. Morse. Where do you find that Pottawatomie treaty? 

Mr. Merillat. The Pottawatomie treaty is in 7 Statutes at Large, 
page 431, or in volume 2 of Kappler's Laws and Treaties, page 402. 
This is the Pottawatomie treaty. 

Mr. Cravens. Give me that, will you ? 

The Chairman. These treaties, I think, are set forth in the letter 
we have here of the Secretary of the Interior. 

Mr. Merillat. Yes, sir. 

Mr. Cravens. In full? 

Mr. Meritxat. Quite largely; but I would sooner give them to 
you direct. 

Mr. Cravens. Seventh Statutes at Large? 

Mr. AIerillat. Seventh Statutes at Large, page 431, or volume 2 
of Kappler's Indian Laws and Treaties, page 402. 

Mr. Cravens. Can 5^011 cite us to the other treaty, too? 

Mr. Merillat. The Ne^w York Indian treaty will be found in Stat- 
utes at Large, page 550, and volume 2^'of Kappler's Indian Laws 
and Treaties, page 502. 

By article 1 of the Pottawatomie treaty, approved September 26, 
1833 (it was not proclaimed until two years later), it is provided: 

The said United Nation of Chippewa, Ottawa, and Pottawatomie Indians cede to 
the United States all their land along the western shore of Lake Michigan and between 
this lake and the land ceded to the United States by the Winnebago Nation at the 
treaty of Fort Armstrong, made on the loth of September, 1832, bounded on the north 
by the country Jutely ceded by the Menominees and on the south by the ^ountry 
ceded at the tr/^'aty of Prairie du Chien, made on the 29th of July, 1829, supposed to 
contain about live millions of acres. 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 7 

Article 2 said that in part consideration of this cession, "the 
United States shall grant to the said united nation of Indians, to be 
held as other Indian lands are held, which have lately been assigned 
to emigrating Indians, a tract of countr3^ west of the Mississippi," etc. 
(those being the descriptive words of the title the Indians would get 
to their lands) 

Mr. Cravens. That means in common, does it noj,? 

Mr. Merillat. It was, as we will show later, ^ title in fee in 
common^ We will show that title by reference to what these other 
Indian treaties were, and the act of Congress. It provided that the 
Indians should receive a tract of country west of the Mississippi 
River, to be assigned them by the President of the United States, to 
be not less in quantity than 5,000,000 acres of land, the title to 
which was to be held as other Indian lands were held which had 
lately been assigned to emigrating Indian^ (those being the words 
that would correspond to the habendum "^n a deed). It described 
what they were to do. The lands were described as lands to be 
located near the Missouri River, the site chosen being about where 
Council Bluffs, Iowa, is now located; and a provision was made 
that a deputation of Indians should visit these lands west of the 
Mississippi River, and that subsistence should be furnished to the 
Indians. It was further provided that the Indians were immediately 
to remove from all that part of the land then ceded which was within 
the State of Illinois, and that within three 3"ears they should remove 
from the lands north of the boundary line of Illinois — that is, from 
lands in Wisconsin. 

Article 3 provided that in further consideration of this settlement it 
was agreed by the United States that they would pay certain sums of 
money (these various sums being set forth), some of which moneys 
were to be paid immediately in cash and others in annuities to run 
for stated periods of time. 

Then came article 4, under which the Indian Office and the Sec- 
retary of the Interior long sought to justify the aption they hatLiaken, 
but which action they now admit was illegal, unauthorized, and a 
nullification of treaty stipulations of an act of Congress. 

By article 4 it was provided : 

A just proportion of the annuity money secured as well i^y former treaties as the 
present shall be paid west of the Mississippi to such portion of the nation as shall have 
removed thither during the ensuing three years, after which time the whole amount 
of the annuities shall be paid at their location west of the Mississippi. 

I have read that article verbatim, and likewise gave you verbatim 
the title that the Indians were to receive. 

Mr. Cravens. I wish you would read again that last part relating 
to the place of payment after three years. 

Mr. Merillat. "After which time the whole amount of the annui- 
ties shall be paid at their location west of the Mississippi." — 

As we see it, that is simply a designation of a place of payment./ 
There is, you will notice, no provision of forfeiture. — 

The Chairman. In dealing witli tl>e Indians the Government always( 
considers the action of the majoritv the action of the tribe, does it not?[ 

Mr. Merillat. I would sa}^ in this instance that it is apparent 
that the Government did ^^ so deem the treaty of 1833, because 
they made fourteen separate treaties following this to get the specific 
consent of specific bands to the removaUof^ihe Indians west of the| 
Mississippi River, and to an acquiescence nmhj>) treaty, those Indians*! 



8 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

being scattered around in northern Indiana, Michigan, and other 

places. They did not make any separate convention with these Wis- 

V consin Pottawatomies, who, as a matter of fact, ahvays had denied 

and still deny that thoa^ who made the treaty of Chicago had any 

right to represent them at all. But I should like at this point to call 

your attention to the provisions^of the New York treaty, in order 

I that they may go in as near apposition as possible to the treaty pro- 

I visions with the Pottawatomies that I have just read. 

By the treaty of Buffalo Creek of January 15, 1838, with the New 
York Indians, it was recited that the New York Indians were making 
a claim to certain lands they alleged they had bought of the Menomi- 
nee and Winnebago Indians in Wisconsin, the Menominees and Winne- 
bagoes likewise claiming this land, and also the New York Indians. 
So you will notice that what the Indians were doing was giving a quit- 
claim deed, practically, for they did not occupy the land except in 
small measure. The Government wanted to settle this matter, and 
likewise wanted to get these lands, so it made treaties with the Me- 
nominees, the Winnebagoes, and the New York Indians. It was 
provided that the New York Indians (some of whom, as stated, were 
resident in Wisconsin) should cede their right and their interest in 
these lands, and by article 2 the consideration was thus stated: 

In consideration of the a'oove cession and relinquishment on the part of the tribes 
of the New York Indians, and in order to manifest the deep interest of the United 
States in the future peace and prosperity of the New York Indians, the United States 
agrees to set apart the following tj^ct of country, situated directly west of the State 
of Missouri, as a permanent homj? for all the New York Indians now residing in the 
State of New York or in Wiscon^n or elsewhere in the United States who have no per- 
manent homes, which said country is described as follows: 

Then it described a tract of land in Kansas, just as the Potta- 
watomie treaty had described and defined a tract of land in Iowa. 
It further provided that the Indians should have and ''hold th6 same 
in fee simple to the said tribes or nations of Indians by patelit from 
the President of the United States, issued in conformity with the 
provisions of the third section of the act of May 28, 1830," providing 
for an exchange of lands. , ^ 

Then came article 3, under which the [executive officers! sought 
to enforce a claim of forfeiture against the New York Indians, just 
as under article 4 they had sought to enforce a claim of forfeiture 
by executive act against the Pottawatomie Indians. 

The Chairman. Let me ask^ you right there if the atterpipt on the 
part of the New York Indians was against the whole tribe -or against 
a part of the tribe? V 

Mr. Merili.at. Against a part of the tribe; not the entire tribe, as 
I understand it. / 

J The Chairman. Was it against the representative authority that 
I made the treaty in the first place ? 

Mr.MERiLLAT. Yes, sir; it was against the representative authority, 
/but it was also directed specifically against those who had been recal- 
"^ citrant — those who had refused to remove; because, as I understand 
it, some of the New JK?i"k Indians did remove. 

Mr. Belt. About^^emoved. 

Mr. Merillat. About 32 removed, as Mr. Belt states. Almost all 
of them, however, refused to remove; they would not remove. 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS^ WISCOA'SI N. 9 

The Chairman. If I uiulerstand this case (perhaps 1 am in error), 
il is this: The United States did make a treaty with the Pottawatomie 
Indians in Wisconsin for removal? 

Mr. Merillat. Yes, sir. 

Tlic Chairman. The tribe did remove, and accepted the terms oi i 
their J^aty, and took hvnds along the Missouri River; but these are i 
a few Indians ^^•ho did not conform to the action of the tribe, and now 
come in and ask for tlieir share of the proceeds of the lands which they | 
never occupied? 

Mr. Merillat. Yes, sir. ^ 

The Chairman. To which they refused to remove? 

Mr. ^Ierillat. Yes, sir. Tha> is in part correct, but not wholly, \ 
},ir. Howell, because thesey>'ia2^nsin bands of Pottawatomie Indians | 
constituted a considerable part of the tribe, and they absolutely I 
denied at the time and always have denied that there was any right 
at all in those who nego^ited and made this treaty to bind them. / 
But that is a subsidiary branch of the case; and we can found our 
case and our rights upon even an admission that as a nuitter of fact 
those of tlie tribe wlio did make that treaty were ^authorized to repre- 
sent them. But in order tliat the facts may all be before you, it 
sliould be kept in mind that the refusal o£these Indians was pri- 
marily based upon the fact that there wasmo^autliorit}^ whatever in 
these Cliicago Indians, or those who were^presented at Chicago, 
to represent those Indians who were consid erably to the^north,.aJld.»«— 
in the upper part of Wisconsin, the PottaWSfcfmB^ISllCfron at that 
time reaily'T)enig,' asTTsriairsTiortly show to you, divided up into a 
htrge number of bands, vr hie h division the United States recognized 
wlien it und ert ook subsec|uen tly to make other treaties. 

But the New Y ork ind lan treaty, by article 3, provided thus: 

It is further agreed that such of the tribes of the New York Indians as do not accept 
and agree to remove to the country set apart for their new homes within five years, 
or such other time as the President may from time to time appoint, shall forfeit all 
interest in the lands so set apart to the United States. 

The President undertook to get them to remove, and they did 
not remove; and vou will notice that there is a provision here read- 
ing, "shall forfeit all interest in the lands so set apart to the United 
States." You will observe that article 4 of the Pottawatomie 
treaty which I read to you does not contain this provision of for- 
feiture. So you can see how much stronger is the case of the Pot- 
tawatomies than is this case of the New York Indians with that pro- 
vision in it. 

The Chairman. But right tdiere^ it seems to me, tliat these Pot- 
tawatomie Indians, from wj^t you say, never did make any treaty 
with the United StatesT-^hever accepted any treaty. 

Mr. Merillat. That is/their contention; and if the United States / 
simply toojkf their lancU4)y force their case is still stronger; but it is / 
admitted and conceded by the Ignited States that they were members 
of the Pottawatomie Xation. Tlu/TJnited States, on its part, holds 
that they (lu^make a treaty witliyme United States, and, at any rate, 
it is adiiiitted that they had a title, just as did all the (5ther Potta- 
watomies, to their lands; and it is admitted that the United States, 
treaty or no treaty, took their lands absolutely away from them, 



10 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

drove them away from the land, put setters upon those lands in Wis- 
consin, and received the government price for them; and then, after 
this, and notwithstanding the absence of a provision of forfeiture in 
the treaty because the Indians did not remove west of the Mississippi 
River, the United States attempted to forfeit their interest in the 
lands in Wisconsin from which tl^y required them to remove and 
which they sold to settlers, forfeited their interest in the lands in 
Io:ffija_QTjji Kansas. tiQ which some of the Indians were subsequently 
removed, forfeited their interest in the annuities guaranteed by this 
treaty of 1833, and forfeited their interest, moreover, in treaties made 
between 1795 and 1833 for other lands which these Indians, along 
with the other members of the tribe, had ceded in Ohio and Indiana at 
a time when the Pottawatomie Nation was a united nation. 

Having shown, as we have desired, the treaty provisions with the 
New York Indians, and the treaty provisions with the Wisconsin 
Pottawatomies, and the decision of the Supreme Court of the United 
States applicable hereto, I want to cite the historical situation of 
these Indians. 

The Pottawatomies at the beginning of the last century, shortly 
before 1800, occupied lands in the State of Ohio extending from the 
shore of Lake Erie to the south. The United States made treaties 
with the Pottawatomie Indians rec|uiring the cession of that land and 
that the Indians should move farther west, excepting therefrom cer- 
tain small tracts which it permitted separate bands of the Pottawato- 
mies to retain. It then made subsequent treaties, between 1795 and 
1833, whereby the Pottawatomies were required to move still farther 
west and were(giveh, a certain stretch or section of country extending 
around the shores "of Lake Michigan, embracing parts of Michigan. 
Indiana, Illinois, and Wisconsin. Under those several treaties there 
were granted in perpetirity to the Pottawatomie Nation as a whole 
(all the Pottawatomie Inchans) certain annuities which they were to 
receive forever from the Government of the United States. The 
Indian title, it was held in the New York Indian case and has been 
hekl in every single decision that has ever been rendered by any of the 
courts, is a communal title. That is to say, each Indian has his 
separate, undivided proportion of lands, funds, or annuities, the same 
as every other membar of the tribe ; and that condition has continued 
until our recent legislation to divide lands and funds in severalty 
among the Indians, which legislation is a matter of the last twenty 
years. 

The effect of these several treaties was to make the Pottawatomie 
Nation, at the time of the treaty of Chicago of 1833, com n-ise a number 
of bands of Iiulians, all of whom together constituted the Pottawato- 
mie Nation, with settlements, however, in between them, and segre- 
gating and separating various tribes or bands one from the other. So 
that when the treaty of 1833 was made at Chicago, you have the nres- 
ent city of Chicago located there; you have settlements in Indiana 
and other places, and you have the Indians resident in these several 
States. In Wisconsin there were a large number of them, and num- 
bers of others in Michigan and others in Illinois and Indiana, all of 
them sti"etchiiig out along the shores of the lakes. The United States 
desired to remove Indians west of tlie Mississip]>i River — the policy 
of the Government being that all Indians, so far as practicable, east 
of the Mississippi River should l)e removed west of the Mississippi, 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 11 

and there should liave a permanent liome. In 1<S30 tliis national pol- 
icy was enunciated by an act that was passed. Have you the act 
[addressing Mr. Belt] ^ 

Mr. Morse. Never mintl the act. 

Mr. jMerillat. The act j>iovided for an exchange of the lands of 
those Indians who were east of the Mississippi River for lands west of 
the Mississippi River, and it provided in specific terms that those 
Indians who exchanged their lands east of the Mississij:)pi River for 
lands west of the Mississipjn River should be assured a title in fee in 
common; that these lands west of the Mississip])i River should be 
their home forever; and that a patent to those lands west of the Mis- 
sissippi River would be issued to them if they should desire the same, 
subject only to this condition — a reversion to the United States if the 
Indians should become extinct or shoidd abandon the lands. That 
reversion has since fallen in. 

I will read you section 3 of the act of May 28, 1830: 

That in the making of any such exchange or exchanges it shall and may he lawful 
for the President solemnly to assure the tribe or nation with which the exchange 
is made that the ^nited States will forever secure and guarantee to them, and their 
heirs or successors, the country so exchanged with them; and if they prefer it that 
the United States will cause a patent or grant to be made and executed to them for 
the same: Provided always, That such lands shall revert to the United States if the 
Indians become extinct or abandon the same. 

Under the provisions of that treaty there was effe cted by various 
treaties a wholesale removal of the Indians east"©!' llie Mississippi 
River to homes west of the Mississippi River, the Mississippi River 
then being considered the dividing line between civilization and 
noncivilization. 

Among other treaties, for example, there were treaties negotiated 
with the Cher6kees, the Choctaws and Chickasaws, the Seminoles, 
the Creeks, the Weas, the Quapaws, the Piankashaws, the Shawnees, 
and other Indians ; and in those several treaties, in one form or another, 
it was provided that the Indians should receive a patent to their 
lands, subject only to this reversionary interest in the United States 
if the Indians should become extinct or abandon their homes. 

It has been decided in every case where it has come up that those 
treaty provisions constituted a title in fee to the Indians. That has 
been decided in the several Cherokee and Choctaw and Cliickasaw 
cases that the Supreme Court of the United States has passed on. 
You will recall that in the treaty with the Pottawatomies it was pro- 
vided that they should have the same title and right to their lands 
that other Indian tribes have had. I have, therefore, referred you 
to the rights that the other tribes received. Those rights were, as 
stated, a perpetual right to the lands, a title in fee in common, and 
as to each of the tril)es that agreed to remove it was further provided 
that they should have annuities. 

So that we lind the situation to be this: That iiy the grant to the 
Indians of the lands in the State of Iowa tbe Indians received a title 
in fee in common, whereby they were guaranteed forever, so long 
as thej^ existed, the lands in the State of Iowa, amounting to 5,000,000 
acres. This treaty was not proclaimed until 1835. The Indians 
were given three years within which to remove. So far as concerned 
the Wisconsin Pottawatomies, they denied the right of these chiefs 
who were at Chicago to represent them, and they did not remove; 



12 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

and they objected to the treaty, and said it was not proper. Objec- 
tions likewise wer^ made by these Indians who M^ere scattered in 
Micliigan, Indianftf^ and Ilhnoi^, the}" stating that they were separate 
bands; that they had their rights; that they occupied these lands, 
and people who were not their cliiefs had no right, as matter of fact, 
to cede their country. The United States recognized that, and 
between 1833 and 1840-odd it made fourteen separate conventions 
with these several bands in Micliigan, Illinois, Indiana, and elsewhere, 
they being small treaties because the bands were comparatively 
small. It did not make any convention, however, witii those who 
were in Vrisconsin and who were objecting' holding that the cliiefs 
j signing did in fact represent the "iVisconsin Pottawatomies. 
' — You see, therefore, historically, the position that the Indians were 
taking and the position that the Government of the United States was 
taking. The Indians had until 1838 to remove to Iowa. Many of 
those who did remove died as the result of sickness, exposure, or one 
thing or another; and those reports of dissatisfaction came back to 
the Indians of Wisconsin. Furthermore the Indians had no sooner 
located in Iowa, where the treaty had provided they should have a 
permanent home, than the influx of white settlement in the State of 
Iowa began to assume large proportions ; and the Government of the 
United States desired this Iowa home and these 5,000,000 acres of 
lands for the whites. So an agitation was begun to secure the removal 
of these Pottawatomie Indians from Iowa, from lands that the treaty 
had said they should have forever, to a ppint still farther west and 
south. That knowledge, of course, c&.iry6, to the Wisconsin Potta- 
watomies, with the existent dissatisfaction; and the Government of 
the United States succeeded in securing a treaty in 1846 from those 
who did remove and from some other Pottawatomies, but not from 
the Wisconsin Pottawatomies, whereby they took these 5,000,000 
acres of land in Iowa and gave the Indians in exchange 576,000 acres 
of land in the State of Kansas with the same style of title. The result 
enhanced the dissatisfaction of the Wisconsin Indians and strength- 
ened their opposition to removal. The Government took military 
and other measures to force those in Wisconsin to remove, with the 
consequence that a considerable number of the Indians fled to the 
northern part of Wisconsin where they could not readily be reached, 
• and others went across the border into Canachi. 

Mr. Morse. There is one little matter that I want to call attention 
to. You see, they were there in the deep woods of northern Wis- 
consin, living on the fish that the}^ could catch and the game that 
they could shoot. The idea was to remove them from there out 
onto the prairies. They did not know anything about prairie life. 
I They could not get anything to live on_^ut there. The\^ had been 
/ born and raised and brought up in the #oo7 ls) They were scattering, 
i roving bands, just a handful in a Land; and they have remained 
1 that way. They are right in my home district to-day, in little liands 
1 scattered around just as they were at that time. 
Mr. Cravens. Do they vote for you? 
Mr. Morse. I do not think they ever vote; no. 
Mr. Cravens. I want to ask you this question before you start, 
Mr. Merillat; I do not want to interrupt you. These annuities, as I 
understand, that were promised to the Pottawatomie Indians, and. 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE TNDTA"NS^ WISCONSIN. 13 

in fact, to all the Indian tribes, were lump sums to be paid to the 
tribes and not per capita annuities^ 

Mr. Merillat. That is provided/^y exactly what I am comin<2; up 
to now. The act of August .30, 1852, ])r<)vided how annuities to 
Indian tribes should be paid. 

Mr. Cravens. When was that enacted? 

Mr. Kappler. August 30, 1852. 

Mr. MerillxVT. The act of 1852 provided that ap})ropriations for .' 
the benefit of any Indian tribe should in every case be paid directly \ 
to the Indian or^ndians themselves to Avhom it should be due, or to i 
the tribe or part of a tribe per capita, vmless the imperious interest of 
the Indian or Indians or some treaty stipulation should rec(uire the 
pavment to be made otherwise under the direction of the President. 
That is the whole of that. / 

Mr. Cravens. What is that ? / 

Mr. Merillat. That is the act of August 30, 1852. 

Mr. Belt. That is in 10 Statutes at Large. 

Mr. Merillat. Ten Statutes at Large, page 56. 

The Chairman. That does not alter the treaty, however, if the 
treaty provided a way. 

Mr. Merillat. This is an act of Congress. 

Mr. Cravens. What page is that? 

Mr. Merillat. Page 56. That act/provided how annuities should 
be paid and recognized the per capita idea in all Indian matters. 

The Chairman. Unless otherwise provided by treaty? 

^Ir. Merillat. Unless otherwise provided in the treaty. 

Mr. Cravens. May I ask you another question at this pomt? 

IVIr. Merillat. Yes, sir. 

Mr. Cravens. W^re all of these annuities paid that were provided 
for by the treaties, both prior and subsequent to 1833? Have they 
been paid? 

Mr. Merillat. They have been paid; but they have not been paidj 
according to the t reaty stipulations, or as the law of the Indians and! 
as the act of Congress required. ' 

Mr. Cravens. I understand that; but the annuity has been paid? 

Mr. Merillat. It has been paid. The fact is that the Govern- 
roejii of the L^nited States, though, did not pay it in the way or to 
^hos^ to whom the Government of the United States was required to 
pay it. The Indians had a communal mterest. The payments to 
the Indians always have been made per capita. It has been recog- 
nized in every decision in an Indian case that each person who actu- 
ally was a nieniber \of an Indian tribe/was entitled to his pro rata 
share of what was "paid. It has further been held that the Ignited 
States occupies the relation of trustee to the Indians; that the In- 
dians are its wards, and the L^nited States is their guardian. It is 
a settled princi|)le of equity that if a guardian or a trustee having 
the duty of making payments to those who are its wards, its cestui 
que trusts, undertakes to and does pay to some one or more of those 
entitled to have a payment more than their {jro rata share, and there 
is a deficit, then the trustee must make that up. I do not believe 
you can find a shigle decision in Story's Ecpiity or in any other work 
upon equity that does not recognize the fact that if a trustee does, as 
a matter of fact, undertake to j)ay out some money to some of his 



14 ADJUSTMENT (Tf CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

cestui que trusts or wards in excess of what they are entitled to, and 
there is not the just j)r()})o.i:tIo^ remaining for the other wards, a court 
will order him to pay it, compel him to pay it, and require his bonds- 
men to do it if he does not. He can not declare a forfeiture, just as 
the courts hold an executive officer of the Government can not declare 
a forfeiture. 
/ Mr. Cravens. Your claim, though, is strictly a legal claim; it is not 
an equitable claim. If you looked back upon the equity side of it, 
; you would have the fact confronting you that these Indians did not 
^^jemove. 

Mr. Merillat. No, sir; I would not have the fact confronting me 
that the Indians did not remove, because the fact is that the Indians 
removed from the lands in question and simply went to other lands, 
and in the New York Indian case the Supreme Court said the refusal 
to remove did not in equity work a forfeiture. They did not go to 
where they were required to go. And I would have the further fact 
that the very question that you now raise was decided by the Supreme 
Court of the United States in the New York Indian case, in which the 
matter was before the court with full legal and equitable jurisdiction, 
and in which the Supreme Coui't of the United States said that their 
failure to remove, notwithstanding the forfeiture provision in the New 
York Indian treaty, did not as matter of fact deprive them of their 
fights in the absence of an assertion by Congress of its right to forfeit 
and that the United States must, as it did, reimburse those who 
refused to remove. 

Mr. Cravens. You say that they did remove. I understood that 
they did not remove. 

Mr. Merillat. The New York Indians? 
^ Mr. Cravens. No, no; these Pottawatomies. 

Mr. Merillat. I say they removed from these particular lands in 
Wisconsin because the effect of the action of the Government of the 
j United States was to force them to remove, but they did not remove 
west of the Mississippi. 

Mr. Cravens. Did they remove from all the lands they deeded to 
the United States ? 

Mr. Merillat. Oh, yes; the United States took possession of it 
all and sold it all to settlers long ago, and the Indians simply retreated 
farther into the north. I think Mr. Morse, who is familiar with that, 
, will agree with me in that respect. 

Mr. Morse. T^ej removed from every acre of the land, and the 
1 Government ha^ taken every acre away from them and has never 
■' paid them a- 5-cent piece for them. 

' Mr. Cravens. It seems to me the only question before us is whether 
or not this money has been properly paid. 
. The Chairman. That is the only question. 

Mr. Cravens. And whether or not these Indians, who have not 
received their part of it, are entitled to it^ 

Mr. Morse. Pardon me for making'' this suggestion: The first 
question is whether or not these waj^ering bands were bound by 
the treaty which some of the avaricious whites got sojue of the 
Indians to sign down there in Chicago. 

Mr. Cravens. You can admit that, and still, if the laws of the 
United States required these annuities to be paid out in a certain 



ADJLSTMEiS^T OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 15 

way, and if they failed to pay them out in that way, in such a way 
that tliese Indians who cHd not remove were ^efraudad- 

Mr. Morse. That wouhl be the second questioiT in tlie case. 

Mr. Cravens. Yes. 

The Chairman. Woukl it not be well to let Mr. Merillat conclude 
his discussion of the case ^ 

Mr. Morse. Yes; I beg pardon. 

Mr. Merillat. The very point you are raising, furthermore, was 
recognized by Congress in the Indian appropriation act of June 25, 
1864^(13 Stat. L., 172). 

Mr. Cravens. What is that? 

Mr. Merillat. Thirteenth Statutes at Large, ])age 172 — the Indian 
appropriation act. By that act it was provid©<l as follows: 

That the proportion of annuities to which said stray bands of Pottawatoniies and 
Winnebagoes — 

Being these very Indians in question — 

would be entitled if they were settled upon the reservation with their respective 
tribes, shall be retained in the Treasury to their credit from year to year, to be paid 
to them when they shall unite with their tribes, or to be used by the Secretary of the 
Interior in defraying the expenses of their removal, or in settling and subsisting 
them on any other reservation which may hereafter be provided for them. 

It is our contention that this act of 1864 comprised two proposi- 
tions: First, a declaration by Congress as to the true construction 
and proper action with reference to the treaty of 1833, and with 
reference to what was being done. In other words, the Congress 
by that act declared to be the law precisely that which the Supreme 
Court of the United States in the New York Indian case did. We 
furthermore say that that act was also an express command and 
direction to the executive authorities of the Government to retain 
and withhold in the Treasury to the credit of tliese Indians their pro 
rata and proportionate share of the annuities and other moneys (and 
also, of course, the lands) that should have gone to the Pottawatomie 
Indians of Wisconsin who had not removed. Second, the act of 
Congress recognized the fact that they had not removed; that they 
were in Wisconsin; that they were entitled to annuities, and entitled 
to equal rights with the members of the tribe who had removed; and 
it made an express provision that they should get their share, or that 
it should be kept there until such time as they would remove, and 
hence would then receive in bulk what was retained. 

But what did the executive officers of the United States do when 
it came to that act of Congress? Absolutely nothing. The execu- 
tive otiicers, in other words, were in a state of temper toward these 
Indians, and said: ''You will either do what we tell you to do; you 
will either go out there immediately, or else v/e will pay over your 
shares to those Indians who have removed." And it continued, in 
defiance of that act of Congress, to pay to those Indians who went 
west of the Mississippi River, and went down to Kansas, not only 
their own share, but the share of those who were in the State of! 
Wisconsin. 

There you have the whole matter before Congress, and a direction 
of Congress; and you have an ignoring of that specific command of 
Congress by the executive officers of the Government. 



16 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

Justice Brewer, in Richardville \t. Thorp (28 Fed. Rep., 52), spe- 
cifically said that — 

The Secretai^y of the Interior had the right to prescribe rules and regulations, but 
he had no judicial power to adjudge a forfeiture, to decide questions of inheritance, 
or to divesW)wners of title without their knowledge or consent. 

I He held that an executive officer had no power to declare a for- 
I feiture. The right to declare a forfeiture is vested, so far as I know, 
I in only two authorities. One is the courts and the other the Congress 
I of the United States. 

Mr. Cravens. Mr. Merillat, under this act approved June 25, 1864, 
it is provided that the money due these bands of Pottawatomies shall 
be retained in the Treasury, to be paid them when the}' shall unite 
with their tribes, or be used by the Secretary of the Interior in defray- 
ing the expenses of their removal. Have they ever united with their 
tribes ? 

Mr. Merillat. They have not united with their tribe, and their 

money therefore should be in the Treasury to their credit, and the 

Government of the United States, meaning the whole Government, 

] did not undertake to make a forfeiture of that money and did not 

/ undertake to, as a matter of fact, remove them. They did not unite 

with their tribe ; but they did this : They went into the north of 

Wisconsin, away from these lands; and that act simply directs the 

retention in the Treasury to their credit of what they were entitled 

to. Had that act been complied with, the Government of the United 

States would have in the.^Ti;easury of the United States to their credit 

all of this money from (186^ on; but because of these overpayments 

' to the others, the Government does not have it. 

ISIr. Cravens. Was there any way by which the Government could 
tell how much to retain ? 

Mr. Merillat. Yes, sir. 

Mr. Cravens. If those Indians had removed and gotten where the 
Government could not reach them, how could they possibly tell? 

Mr. Merillat. The Government of the United States could have 
ascertained in the same way that the Government of the United States 
to-day has ascertained. It could have sent agents up among them; 
it could have made a census, and could have established the exact 
proportion that they were entMed to, just as the Government of the 
United States lately has gone up to that country, has made a census 
of them, and has reported their due proportion. And, furthermore, 
at this time, in 1864, there were reports of the Indian agent, which 
are part of the official data that have been used now, which state the 
proportionate part of the Indians who were in Wisconsin and who had 
not removed. So the facts and the figures were before the Govern- 
ment, and are part of the official records, shown in documents tliat are 
printed, and to which we will refer the committee. 

Mr. Cravens. Do I understand Mr. Morse to say, too, that these 
Indians are still roving bands, with no permanent location — no towns, 
or farms, or anything like that? 

Mr. Morse. No; there are just a few in a band. They are hardly 
bands, but families scattered around. 

The Chairman. Before you commence again, Mr. Merillat, I should 
like to ask how many Indians were included in this treaty of 1833 ? 

Mr. Merillat. That is shown [examining papers]. 



ADJUSTMENT OF CLAIMS l»F PCriTAWATOMTE INDIANS^ WISCONSIN, 17 

Mr. Belt. While Mr. Merillat is searching for that, I want to calL/ 
the committee's attention to the fact that tliis Docuiuf nt No. 185, 
Fifty-seventh Congress, second session, which is a memorial of th(> 
Indians, shows that the United States furnished an agent to look 
after these Indians for a number of 3'"ears after the war. 

Mr. Cravens. After 1835^ 

Mr. Belt. After 1835 — after the civil war. 

Mr. Cravens. How do these Indians live now? 

Mr. Morse. Oh, some of them by fishing and hunting; some of 
them have little farms up there. 

The Chairman. Has tlie Government of the United States never 
made any provision for them^ 

Mr. Morse. Not a pennj^'or one of them; has it, Mr. Merillat? 

Mr. Merillat. Absulutely nothing, except an appropriation on on(i 
or two occasions of $10,000, when- reports came that they were stai*v- 
ing, owing to some special conditions that arose. | 

Mr. Morse. They took from the Indians the best land in the world, 
and they have received nothing in return. 

Mr. Belt. The facts are all set out in this document. ^;^^^-^n 

Mr. Cravens. Is there any provision in this bill to v|educ) from 
their share of the annuities what has been paid them? 

Mr. Morse. I tliink not. I did not know that anything had been 
paid them until after I drew the bill. 

Mr. Merillat. You will find in Senate Document No. 185, Fifty- 
seventh Congress, second session, a statement which will give you 
the total number of Pottawatomie Indians, and the number in Wis- 
consin. ; 

Mr. Morse. Put that in the record, will you? 

Mr. Merillat. Tlu/ total number of Pottawatomie Indians was 
approximately 8,521: The ilumber of Indians to whom the present 
measure would apply, and/he number who remained at their liomes, 
was approximateh* 2,087 — about one-fourth. 

The Chairman. Tliat would amoimt to this, then — that there were 
10,000 Indians in the Pottawatomie Nation at that time'!! 

Mr. Merillat. No, sir; there were 8,500 all told, 2,100 of whom, 
in round numbers, did not remove west. / 

The Chairman. How many bands or tribes were these 8,500 Indians 
divided into? — ^ 

Mr. Kappler. Ab(_^t^j) / 

Mr. MerillxVT. Sixteen or seventeen — thereabouts. We know \ 
that by the various treaties that were made. I 

The Chairman. Tliere wen^ treaties made with each particular 
band? 

Mr. Merillat. Yes, sir. 

Mr. Cravens. Except these Indians? 

Mr. I^Ierillat. Except these Indians. /"""""^ / 

Mr. Cravens. There were no separate treaties with these(^,100'| l 

Mr. Merillat. Tliere was no treaty with any of these separate 
2,100, but of course the United States claimed they came under the 
treaty of Chicago of 1833. ' 

The Chairman. What particular band did they belong to? 

Mr. Merillat. They })elonged to what was known as the 
Wisconsin (banc] of Pottawatomie Indians. Thev were located in 



70761— POTT iND— 09 2 



, 



18 ADJ rSTMENT OF/ CLAIMS OE POTTAWATOMIE INDIANS, WISCONSIN. 

j tlie State of Wistfbiisin and north of the IlHnios boundary Hue. 

; These chiefs who undertook to make this treaty were very largely 

those Intlians who were in the South, and also Indians in the East. 

They did not represent, so the Indians claimed, those Indians who 

were up in the middle part or even the lower part of Wisconsin. 

The Chairman. But how was this treaty of 1833 negotiated and 
agreed to? 

Mr. Merillat. By the United States, with a number of chiefs of 
Pottawatomie bands, who were assembled at Chicago. 

The Chairman. How many bands were represented in that treaty? 

Mr. Belt. The process of' making that agreement was this: The 
Government sent a commissioner up there to deal with these Indians, 
to get them to remove west. Mr. Merillat has very properly stated 
aS to how they were situated. They were on both sides of Lake 
Michigan, and runnmg down into Illinois, the apex being about 
Chicago. They were running down in there. At first the Govern- 
ment went to tliose west of Chicago, which included these people, 
and made an agreement, dated some time in September, 1833, pro- 
viding that they would remove to the west of the Mississippi. After 
they had made this agreement they went on to the east side and 
made a supplemental agreement, as the treaty book w^illshow, with 
those people, they agreeing to these stipulations; and in it they 
provided that all the Indians should settle on this 5,000,000 acres 
of land on the Missouri River, and that all the Pottawatomies of the 
various bands should be moved to it. Then they proceeded down 
into Illinois, on the east of Chicago, and in Indiana, and settled with 
or made treaties with a very large number of bands of Pottawatomie 
Indians that had special tracts of land ceded to them J^' sjiecial 
treaties. All of these bands ceded their land, except bi^'ree bands; 
and it was provided by these separate treaties that they — ^tTieTndian 
parties thereto — should go to this land on the Misst)uri River at 
Council Bluffs. ^^Hien the Indians got there, all of these separate 
bands of Pottawatomies, Ottawas, etc., agreed in the preamble 
to the treaty of 1846 that they would be thereafter known as the 
...-ignited Tribe of Pottaw^atomie Indians." 

• The Chairman. What I am trying to arrive at is this: Are these 
[ndians, this remnant of Wisconsin, now a distinct tribe ? 

Mr. Belt. No, sir; they are a part of the first Indians treated with — 
_Uie first with whom the treaty of 1833 was negotiated. 

The Chairman. And in that treaty they were represented by 
their chiefs or heads of families? 

Mr. Belt. The chiefs %sume^ to represent them. 

The Chairman. Which is The usual custom when dealing with tlie 
[ndian tribes? 

Mr. Belt. That is about the usual custom, I admit — about the 
usual custom — but these people said that they had no right to cede 
their lands from under them. 

Mr. Cravens. Referring to this 8,500 wliich you gave as the num- 
ber of Pottawatomies, does that mean in Wisconsin, or everywhere? 

Mr. Merillat. Everywhere, sir. 

Mr. Belt. Let me explain, please, about that 8,500. (I do not 
want any conliifnon in the minds of the members of the committee.) 
I have set out in Senate Document 185 the various report -^ of the 



IMUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 19 

agents that were made to the Governnieut from year to year, show- 
ing the progress of removal. Sometimes they woukl state that they 
were 8,500, and sometimes they would state that the whole number 
was very much less. So you must take that with the olhcial state- 
ments I have given in the report. I have given the references in 
that document to the annual reports of the Indian Office showing 
the numbers. I am not absolutely certain that there were 8,500. 

Mr. Cravens. What is the number of that docimient ? What is the 
title of it? 

Mr. Merillat. Senate Document 185, Fifty-seventh Congress, 
second session. Tli^n there is a report of the present session — House 
Document No. 830) Sixtieth Congress, first session. 

The Chairman. Were these Indians that you are representing 
now known as reservation Indians or blanket Indians? Did they 
have any fixed places of abode, or were they simply roaming from 
place to place, A\dthout any domicile? 

Mr. ^Terillat. These Indians, as the reports of the Government 
all show, were Indians who at this time lived in Wisconsin. There 
was their home. They had, as the report states, their small patches 
of corn. They lived to a considerable extent by fishing and hunting 
and all that sort of thing. They were not roaming Indians in the sense 
of Indians who were always, continually, on the move. They were 
Indians, as we understand, that were in scattered detachments, as it 
were, and moved out from a given place to fish or to hunt, and then 
came back. Their habitations were not, of course, the fixed habita- 
tion of a white man who has absolutely just one place that he is 
rooted to; but within a certain limited and defined area they were 
fixed. They did not, in other words, attempt to extend into Minne- 
sota, or into Illinois, or any place of that 1-dnd. They hatl a larger 
range than a white man would liave, antl yet they were circumscribed. 

The Chairman. If I understand the situation aright, when they 
refused to accede to the ifreaty that their chiefs had made they sim- 
ply became fragmentaiy bands, or renegade Indians ? The cliiefs of 
the various tribes that entered into the treaty carried with them to 
the west most of the tribe, I suppose? 

Mr. Merillat. There the fact is that they did not carry with 
them the Wisconsin Pottawatomies, as I understand the situation. 

Mr. Belt. They were organized in bands ? 

Mr. Merillat. Yes; they were organized in bantls,^ but I do not 
understand that the chiefs who made the tieaty of ^icago (and the 
record shows that that, is the case) did haye the authority or ^i:ex^ 
the chiefs to any considerable extent of these Pottawatomie Indians. 
They undertook to claim certain chief tainsliip rights; but as a mat- 
ter of fact, especialh^ as to tiy>6e Pottawatomie Indians who were 
toward the north, they were (not Jtheir chiefs at all, so the Indians 
claimed, and hence the difficuTtyarose over removal. But chiefs or 
no chiefs, the essential point is, there was no lawful power of forfeiture, 
and that was wKat was done and is now complained of as having 
been found illegal in the New York Indian case. 



The Chairman. That is what I am seeking information about. 

Mr. Merillat. Yes, sir. 

The Chairman. Have those tribes that you are representing now 
maintained their tribal relations and their tribal organization from 
that time until the present? 



20 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

Mr. Mekileat. Nu^ sir. For a considerable time, apparently, they 
maintained a larger tribal organization; antl I take it that it hap- 
pened, although of c/^urse the documents are not as full and complete 
on that point as to enable one to state a particular time when they 
ceased to have a large tribal organization. But in time they settled 
into a number of detachments, and they now have scattered through 
Wisconsin and Canada certain villages, as it were, with chiefs of those 
villages. The action of the Government of the United States in send- 
ing the military forces up there, of course, was to force these Indians 
out and into smaller communities ; so that now they would consist of 

ra collection of bands rather than one general band with one chief, 
although there are a fq^^ who claim tliat they are representative of 
the whole organization. J 

The Chairman. I just want to get this matter clear as to whether 
these Wisconsin Indians who remained in Wisconsin were ever parties 
to this treaty of 1833 that you refer to. 
. Mr. Merillat. There is at that point a certain amount of con- 
fusion and conflict. I have desired, if I could, to get the exact facts. 
; It would not be fair, it would not be correct, to state absolutely that 
they were not parties to it, unless you stated the position. Those 
Indians in Wisconsin denied that they were parties to it. They said 
that these chiefs had no right to represent them, and were not their 
chiefs. And, on the other hand, the chiefs asserted a right to repre- 
sent them; and the Government of the United States sided with those 
chiefs, apparently, in the course of conduct that they took, and held 
/they did represent all. But, concede that, and the Supreme Court 
/ says, even though the Indians refused to remove the Indian Office 
\/ c(ould not forfmt either their western lands. or their annuities. We 
\/find, innnediately after these chiefs undertook to represent tEem, a 
protest that they did not in fact represent them; and we find that the 
farther removed from the city of Chicago were the Indians in ques- 
( tion the less authority and the less right ihey recognized in these 
\chiefs. v 

The Chairman. The only evidence of that protest, I presume, 
is the fact that they did not rWiove ? 

I Mr. Merieeat. Ihey protesl^d at the time; and the Indian Office 
records show that the basic ground of their protest was that these 
chiefs were not authorized to represent them, and that they had no 
right to- cede their lands. 

The Chairman. They ])rotested, then, through chiefs who did 
claim the right to represent them^ 

Mr. Merieeat. They i)rotested through chiefs or headmen among 
them who said, "We represent these Indians;" and they refused to 
I recognize that treaty. But I do not think it would be a fair state- 
ment for anyone to undertake to say dogmatically that they did or 
j that they did not represent them. There was that conflict and that 
confusion, and that entered into the refusal of these people to 
remove. ThaC dissatisfaction and that denial of course became 
accentuated V\vhen so many of Ihe Indians who moved from this 
country of lakes and rivers to this ])rairie country found the condi- 
tions very hard, and it became still further accentuated Mhen they 
had no sooner gotten to what was stated to be their permanent home 
than the agitation was begun to move them still farther down into 
Kansas, and into a country wholly unsuited to them. 



ADJUSTMENT OF CLAIMS OF POTTAWA TOMl K INDIANS, WISCONSIN. 21 

That was the historical situation that brought about these condi- 
tions that we find. The Indian office sought to assert this claim, 
and by ])rute force, as it were, to bom])el them to remove, and on 
refusal illegally asserted a forfeiture of their rights. That, as it 
seems to me, brings us to the precise legal question involved in the 
New York Indian case, for that was very much the situation of the 
New York Indians. They were not willing to remove, although it 
was required by treaty that they should remove. 

In the New York Indian case the Supreme Court of the United 
States considered two contentions: Counsel for the Government of 
the Unitetl States asserted that this grant of lands west of the Missis- 
sippi River to the New York liidians was not, as I stated at the open- 
ing, a grant in j^regentij that the Indians, by virtue and force of that 
treaty, did not acquire an absolute title to this land in the West, and 
hence the Government was not hable since removal was a condition 
prfixiedent to ownership of the lands, and the grant was only one in 
fjiture. 
~Mr'. Belt. In Kansas. 

Mr. Merillat. In Kansas; that it was, in other words, a grant upon 
a condition precedent and/in the future tense. The Supreme Court 
of the United States, in cx^nsidering that grant, referred among other 
cases to the Rutherford case in North Carolina, the case of Rutherford 
V. Greene, which was a cjuestion as to whether there was a present 
grant to Gen. Nathaniel Greene. Considering all those cases, the 
Supreme Court of the United States said : 

Although some part of this is expressed in the future tense, it is perfectly clear that 
the intention of Congress is to make a grant in presenti, and that/by the terms and force 
of this treaty the New York Indians as a tribe get a communar right to the entire land 
in the State of Kansa's given to them. 

It held, therefore, that the New York Indians, whether they did or 
did not remove, were by the terms and force of this treaty given and 
granted the lands in the State of Kansas, and had a fee. Then it 
approached the next C{uestion, and said: 

What is the effect, having determined what title they had , of article 1^, which specific- 
ally provided for a forfeiture? 

And upon that point the court said: 

In the view we have taken of the granting clauses of this treaty, the provisions of 
the third article created a condition subsequent, upon a breach of which the Govern- 
ment might declare a forfeiture, but had no power by simple executive action to 
reenter, take possession of the lands, and sell them. A distinction is drawn by the 
authorities between the case of a private grantor, who may reenter in the case of the 
breach of a condition sub^quent, and the Government, which can only repossess 
itself of lands by legislative or judicial action. The distin(;tion was first clearly drawn 
by this court in the case of United States v. Repentigny (5 Wall., 211, 2(57), in which 
the court said: "We agree that before a forfeiture or reunion with the jiublic domain 
could take place a judicial inquiry should be instituted, or, in the technical language 
of the common law, oflice found, or its legal equivalent. A legislative act directing 
the possession and appropriation of the land is equivalent to office found. The mode 
of asserting or of assuming the forfeited grant is subject to the legislative authority of 
the Government." 

It held that while Congress might have declai'ed a forfeiture there 
had been, as a matter of fact,^lu> forfeiture, and that none had been 
declared by jCongress and thai the Executive was ])o\verless and 
incompetent to tleclare one. 

If the court held that in the case of the New "^'ork Indians, with 
this provision in the treaty that they should forfeit their rights by 



22 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

not removing, how can you possibly maintain Siny such right of 
executive forfeitui'e in the case of the Pottawatomies, ^^'here there 
is no condition and no provision of forfeiture at all, but simply a 
provision of a place of payment ? 

Mr. Cravens. Let me see, now; they did give up the lands'^ 

Mr. Merillat. They gave up the lands; yes, sir. 

Mr. Cravens. They did not acquire any of these lands that were 
ceded to them in the West ? 

Mr. Merillat. They did not by actual residence, but under the 
treaty and the Supreme Court inter] retation in the New York Indian 
case they did acquire a fixed present right. 

Mr. Cravens. These that you represent now, 1 mean. 

Mr. Merillat. Yes, sir; that is correct. The}^ did not actually 
take. / 

Mr. Belt. "Th^ did not acquire?" — that is pretty severe. They 
did not possess, v 

Mr. Cravens. They did not occupy? 

Mr. Belt. They did not occupy and possess. 

Mr. Cravens. They never have? 

Mr. Merillat. They ne^;^ have. 

Mr. Cravens. You are^^ claiming anything, though, in this bill 
by reason of the fact that they did not occupy that land ceded to 
them, are you? 

Mr. Merillat. Yes, sir; we are claiming th^ir fair share of those 
lands, because they were given to the tribe as a whole, and the 
Supreme C^ourt has held the whole tribe acquired in common. 
There was no right in the United States to take, subsequently, their 
lands, and, as a matter of fact, give their share in those lands to 
those of the tribe who did remove, for these jieople were entitled to 
their proportionate part. But that is not tl^e main item, of course, 
of the amount that is fixed. It is chiefly the annuities. 

Mr. Cravens. What you have asked for in this bill is their pro- 
portionate share of the annuities? 

Mr. Merillat. We ask their proportionate share/ of the annuities^ 
and we ask their proportionate share of the price/that was received 
when the Government undertook to (as it did) sell certain of these 
lands. I think some were sold to a railroad. Is not that true? 

Mr. Belt. Yes, sir. 
[ Mr. Merillat. The Government undertook to sell, and did sell, 
certain of their lands, and covered the proceeds of sale into the Treas- 
'ury, and then distributed the proceeds to those Indians who did re- 
move; and some Smaller -part is still due to the Indians on account of 
what would have beenp'kt the price of sale, their share of the lands 
that were left and that were divided uDjimQ^ig^the others. 

Mr. Cravens. How much of this |447,:339^is their proportionate 
share of annuities under treaties, ancr-vsThStTj^tart of it is what you 
claim as their proportionate share of the price of the land ? 

Mr. Merillat. That entire information you will find in House 
Document' 830, Sixtieth Congress, first session. 

Mr. Cravens. Whereabouts in that? It is a pretty long document. 

Mr. Merillat. The statement of account that was made goes into 
each part of that separately. You will find in that document, begm- 
ning with page 7, statement No. 1, statements Nos. 2, 8, 4. 5, 6, and 
then a reca])itulation; and in statement No. 4 



ADJUSTMENT OF CLAIMS OF PO TTA WATOMTE INDIANS, WISCONSIN. 23 

Mr. Cravens. Did any 
West 2:0 from Wisconsin ? 



Mr. Cravens. Did any oKthese PottaAvutoinie Jmlijins th:it wonij 



Mr. Merillat. Some of them went from Wisconsin. I 

Mr. Belt. Oh, yes, sir. y^ 

Mr. Merillat. Yes, sir; quite a few. ^ — .^^ 

Mr. Cravens. There were left there ab()ut;2,l(m of the ^^,:)()() thnl 
were ail over the country? 

Mr. Merillat. Yes, sir. 

Mr. Cravens. What part of the 6,400 went from Wisconsin '. 

Mr. Merillat. I do not know that it would be possil)Ie to give 
absolute data, but there is no doubt that a considerable number of 
those who did remove removed from the State of Wisconsin. 

Mr. Cravens. A good many of them went— ^ Mr. Belt stated, as 
I understood liim — from IndianaNand Illinois?^ — ■ 

Mr. Merillat. By that time a number went from Indiana and 
Illinois, but they were not the larger part of the tribe, because by that 
time the Pottawatomies had gotten farther west than Indiana and 
Illinois. There were quite a number that went from there, but the 
bulk of the tribe had by this time removed West. They were scat- 
tered, as you can readily see^/ 

Mr. Morse. Four hundrea and fifty-seven still remain in AYisconsin. 

Mr. Cravens. That is, now? 

Mr. Morse. Yes. I 

Mr. Cravens. That is, out of the 2,100? ' 

Mr. Merillat. Yes, sir. ^ — > 

Mr. Cravens. But this bill provides, also, for aboutClJ^;()0'altogether? 

Mr. Merillat. It provides that you may send to the Court of 
Claims and adjudicate that part. 

Mr. Cravens. What does the record show as to what chiefs at-1 
tended the making of this treaty at Chicago from Wisconsin? And! 
does it show what part of Wisconsin thev weretfi'on^ and what, their '^ 
titles were? ^-^ ' — ' — if 

Mr. Merillat. I know of ^io;flata outside of the sign atureg^that are 
to it that would show that ; and so far as I know, there is ^ record 
evidence of the titular Authority of the particidar persons w^hose 
I names are signed here. We know that contemporaneously with it/ 
there was tlais denial on the part of the Indians. (jlLat .is a matter] 
of record ."^^ The persons \vho undertook to secure the removal stated; 
^e reasons wl^\ "Bnt'when it came to go Into matters of detail, 
and^cTetermine precisely the title or authorit}' of the parties who 
claimed to represent the others, we do not have records that would 
enable you to determine it in the same way that you would deter- 
mine whether or not an agent is, as a matter of fact, the representa- 
tive of his prmcipal. 

The CiiA^iJMAN. Were an^- of these Pottawatomie Indians living 
in Canada^t this time? 

Mr. Merillat. No, sir. These Pottawatomie Indians at that time 
were located a considerable distance south. They are now up m 
northern Wisconsm, but that is the result of time. And looking at the 
whole record as I have gone over it, this wouki seem to be a true 
proposition, as I stated before — that the farther north you went in 
Wisconsin from Chicago the less strong seemed to be the authority 
which the chiefs had or which was recognized over those Indians who 
were to the north. The Pottawatomie Nation had ])een broken up, 



24 ADJ rKSTMEN T OF CLAIMS OF POTTAWATOMTE INDIANS, WISCONSIN. 

as it wt-re, into bands, and that very condition is recognized in this 
treaty of 1846. whereby the Indians were removed from the vicinity 
of Council BhiiTs, Iowa, to Kansas, because you will find that the very 
first part of that treaty is a declaration by the United States that it 
desires to reunite and bring together the scattered bands of the Potta- 
watomies and make them into one nation. 

Mr. Morse. Let me read a couple of sentences at this })oint, and 
that will make the matter clear. The question has been asked half a 
dozen times [reading from page 15 of House Document Xo. 830, Six- 
tieth Congress, first session]: 

These Indians, as a rule, have no fixed homes, but roam from place to place, picking 
berries, digging ginseng and other roots, gathering evergreen^, working in lumber 
camps, etc. A few of them have homesteaded, and now hold from 40 to 80 acres of 
public land, and have made small clearings and erected rude log houses. In the 
main, though, they are squatters, and have built shelters or shacks and made small 
clearings in the forest, or wherever vacant land could be found. All the public land 
in Wisconsin has long since been settled; and lumber companies now own or control 
the lands on which these nomads temporarily reside. Consequently, when the cut- 
over lands are sold to settlers, the squatter Indians are forced to move on, and thus 
lose what few improvements they have made. 

As northern Wisconsin has been settling up, and the lumber com- 
panies have taken off the timber and sold these lands to actual settlers, 
the Indiana have been driven farther and farther north; and that 
accounts /()r the fact that many of them are now across the line in 
Canada.'^ It is the on^^'ard move of civilization that has been pushing 
them farther north. ^/ 

The Chairman. It is over seventy years since that treaty was 
negotiatei! : and during all that time the Government has never taken 
any interest in or had any knowled^'e of these Indians? 

Mr. Merillat. Oh, yes, sir; it tins. 

The C'li AIRMAN'. So far as any dealings or relations with them are 
(;onceined i 

Mr. Merillat. The Government of the United States, in the very 
act of 1864, provided that measures should be taken; it recognized 
the existence of the condition, and there are various reports that 
show that these matters were brought honie to the attention of the 
Government of the United States. But you were in this position: 
The executive authorities had taken a stand; they had acted, even 
in defiance of an act of Congress, and every^ time the Indian bobbed 
up and asked for his rights he was knocked down and told that he 
did not have any, and that forfeiture was continually asserted against 
him by the people who were supposed to look after him. 

The Chairman. When did these Indians first appeal to Congress 
for relief i 

Mr. Merillat. We find that they appealed prior to 1864. because 
we find in the act of Congress of 1864 that Congress i-ecognized their 
rights and gave certain directions. The act of 1864, you will remem- 
ber, directed that their share should be withheld, and it stated that 
there were these stray bands of i'ndians in Wisconsin, ajid it referred 
to the fact that they had a treaty, and that under that treaty they 
were entitled to a share in what is now being claimed for them. 

The Chairman. As I recall, in your brief you made the statement 
that the Interior Department had been against this legislation, had 
been reporting adversely to this proposed legislation, until recently''? 

Mr. Merillat. Until recenth'. 



ADJUSTMENT OF CLAIMS OF POTTAWA'iO.MTK INDIANS^ WISCONSIN. 25 

The Chairman. I was trying to get at when this ])reseiit legishition 
was first p ro : )osed ? / 

Mr. :Mekillat. In the year 1902.'^ In 1902 the attention of the 
Government of the United States was called to this matter by a mis- 
sionary ^^long these Indians, who endeavored, through Senator 
Quarles, of Wisconsin, to get relief for the Indians. The Indian office 
wrote back to Senatoi- Quarles that the Indians bad no rights; that 
the}^ had forfeited all their rights by not removing; and that there was 
no claim on their part, and no money. Protests were made against 
the ]ja3"ment of their shares to those w ho had removed West. The 
protests v,'ere ignored. No attention was paid to them. Senator 
Quarles, upon receipt of this letter from the Indian office, den3ang 
their right, and asserting that there was a forfeiture, took the position 
that if the Indian office (the very guardians of these Indians) was 
denying them rights, it must be because they did not have any. 
Thereujx)!!, however, Mr. Morstad, who was a Scandinavian, wrote 
to Senator Nelson, of Minnesota. Senator Nelson sent the letter on, 
and it came into the hands of Mr. Belt, who was then practicing 
attorney in this city. Mr. Belt devoted that summer to looking into 
and ascertaining the exact situation with reference to those Indians. 
He became convinced upon an examination of the treaties, the re]5orts 
that were to be had, the data available, and the decisions of the courts, 
that this action of the Executive in undertaking to declare this for- 
feiture and in ignoring the act of Congrats was illegal; that these 
persons had rights, and he so wrote to Senator Nelson. 

The result of all this was that thes^/scattered remnants or bands 
got together; and througli Chief Kisheck (who seems to have a little 
more authority over them as a wdiole than anyone else, and to be, 
as it were, perhaps, the representative of these scattered bands) a 
council or a gathering \yis called. That gathering resulted in the 
employment of Mr. Belt upon a contingent contract of 20 per cent, 
the Indians having no money for retainer or expenses or anything of 
that kind. That contract was sent dow'n to the Indian office; and 
at that time the Commissioner of Indian Affairs was Mr. Jones. Mr. 
Jones approved the contract, but witli a reckiction in the fee to 15 
per cent, at the same time stating that the Indian ofli<'e denied that 
these people had any rights or any claims. It would seem that there 
was doubt in his mind, because of the fact tlui,t they did not have a 
tribal organization and were not living in what would be considered 
tribal relations, as to whether or not his approval and the approval 
of the Secretary of the Interior were" required to that contract under 
the provisions of section 2103, which prescribes a certain specified 
mode of making an Indian contract. He said, however, tliat it seemed 
only proper to recognize the right of the Indians to be represented by 
an attorney and to give an official status to this matter. Therefore 
he approved tlie contract, but with a reduction of the fee to 15 per 
cent. Section 210.3 ))rovides that after one makes a contract with 
an Indian tribe or council, the contract must go to the Commissioner 
of Indian Affairs, and he nnist approve the same, and that the Secre- 
tary of the Interior must also approve the same. Section 2103 does 
not require the Secretary simply to confirm what the commissioner 
does. The commissioner and the Secretary act indejiendently. 

Mr. IVIoRSE. Just a moment. The commissioner says he tliinks 
S5,000 is enough. What do you say as to that? 



26 ADJUSTMKiXT OF CLAIMS OK POTTAWATOMIE INDIANS, WISCONSIN. 

Mr. Merilla'J'.' I say that such a proposition is an absurdity, in 
view of tJio fact that it appears here that Mr. Belt lias done seven 
years' work, and we have done three years' work, upon this claim, 
and every step and every move has been due to us. And I am 
comino; to that in logical sequence. 

The Commissioner of Indian Affairs approved this contract for 15 
per cent. He stated that the matter had long been denied, and 
apparently it was a hopeless case. The contract was taken wholly 
contingently; and in view of all of the difficulties ahead of the 
parties he, the Commissioner of Indian Affairs, though 15 per cent 
was a proper amount to allow. 

Mr. Morse. Have you ever sent any representative up there to 
Wisconsin ? 

Mr. Merili.at. Mr. Belt can answer that question. 

Mr. Belt. What is the question? 

Mr. Morse. Have you ever sent a man from Washington to 
Wisconsin to look ir(i(6 this matter ? 

Mr. Belt. No, sir; I had no need to do so. 

Mr. Morse. You have had no expenses outside of tire city of 
Washington, have you ? 

Mr. Belt. None whatever- in the way of sending anybody up 
there. v/ 

Mr. Morse. Mr. Morstad has done the work and the Indian De- 
partment has prepared the roll? 

Mr. Belt. The Indian Department has made the census. Mr. 
Morstad was employed to assist the enrolling officer. 

Mr. Cravens. This is settled by contract, is it not? 

Mr. Morse. No. 

Mr. Cravens. Their fee? 

Mr. Morse. No; it is not settled by contract at all, because when 
we legislate in a matter of this kind we fix the fee that they shall re- 
ceive. 

Mr. Cravens. Who recommentls $5,000? 

Mr. Morse. The Commissioner of Indian Affairs. 

Mr. Merillat. T will get to that matter. The matter then was 
sent 

Mr. Morse. You had better be brief about it, because we have got 
to go up to the House. 

Mr. Merillat. Yes, sir. The contractwas sent to the Secretary of 
the Interior. Mr. Hitchcock was opposed to the employment of attor- 
neys to represent the Indians at all, stating that he would do it ; but they 
denied, but they insisted in denying, that the Indians had any just claims. 
^ The attorneys went on, continued their work, and finally they suc- 
! ceeded in securing an act of Congress directing that a roll should be 
, prepared, and that a statement of the annuities should be submitted 
jto Congress. The attorneys, aided by Mr. Morstad, the missionary 
in Wisconsin, gave directions to the officers as to where they should 
make the rolls. We would Wve refused to make the roUs^ because 
they would have had no verity if we had. We refused to make these 
comjjutations. The rolls were made from data and various matters 
that were put- by \is before them for tlieir verification; and so, like- 
wise, with reference to the computations. The computations were 
made, and tliey were sent over to the Secretary of the Interior. The 
Secretary of fh*' Interior sent for us and asked us to go over them. 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 27 



The Iiulian office made an error of •^38()^.0O in onr favor in their 
computations. When we went over ttieir computations, we said: 
"We will refuse to stand upon these computations, because you have 
made an error in not counting in some Indians who should be included 
in this; and we can not justify this report. You have given us too 
large a percentage of the total." It was sent back to the Indian 
oflice, and a chief of [the Indian oflice refused to make any change 
in his computations, and said he would resign first, but he did make 
the change after he found that he would have to. 1 hen \\ e went to 
the Indian office; and after the}" had for several years denied any 
right in this claim, they recently came aroimd to the- view that the 
attorneys were correct. What chance would the L»mians have had 
in this case if it had not been for their attorneys?^ 

We went before the Assistant Commissioner of Indian Affairs and 
asked for a hearing on the only matter that was then left open in their 
minds — with reference to the fee. They refused to give us a hearing 
as to what our fee w^as or should be. They stated that apparently 
a large part of the services had been performed in Congress. They 
knew nothing whatever as to that. The assistant commissioner 
stated to me that he did not know of our firm having anything to do 
with it. I asked liim to send for his subordinate officials, his chiefs 
of division, who had had control of the matter, and they would state 
what we had had to do with it, and how much, and how active we had 
been in our efforts. We have any quantit}^ of correspondence, and 
can show the memorials, bills, resolutions, and reports we drafted 
and what we did. We tried to go into that entire matter, and were 
refused a hearing. \Ye went to the Secretary of the Interior and asked 
for a hearing, and he declined to give a hearing, stating that he would 
have to depend upon his Commissioner, or rather Assistant Com- 
missioner, of Indian Affairs; and if this assistant commissioner was 
going to repudiate a contract which the former commissioner had 
made, he saw no need for a hearing. The result was that this S5,000 
fee was reported without a hearing being given us. 

There is and has been a certain amount of personal antagonism 
between Mr. Belt and the gentleman who passed upon this matter; 
and that shows itself in this statement that the attorneys should get 
a fee of $5,000 after one of them has done seven years' work, after 
the other two have done three years' work, and after we have suc- 
ceeded in bringing to this point what the Indian ofhce said was no 
claim whatsoever, and what they regarded as a hopeless undertaking 
and against their strong and continued opposition. We submit that 
that is not a fair compensation. 

As to what Mr. Morstad has done, we say this: We always had 
intended and still intend to offer proper compensation to Mr. ^Morstad, 
for what has been done by him, out of our fee when paid accord- 
ing to contract. The difficulty with that situation was this: 
Mr. Morstad was a missionary. He showed in everything that he 
did that he was doing it out of his interest in the welfare of these 
people. We could not, under the circumstances, apjuoach Mr. Mor- 
stad upon that point. It was a delicate matter. Our intention had 
been and still is that when the matter was concluded and our con- 
tract fee paid, we should say to Mr. Morstad that we desired to rec- 
ognize his services. The only things that we have not done have 
been to make the rolls and to make the com])utations. We refused 



28 ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 

absolutely to make an}' of those, although supplymg mfoiination 
and data; because if we had made them, what verity would you 
have given to them when we came before you? 

Mr. Cr.AVENS. I think you are correct tibout that. But you sa}" 
3^ou intended to compensate Mr. Morstad? 

Mr. Mehillat. Yes, sir. 

Mr. Ckavens. To what extent ? 

Mr. Mekillat. That is a matter that I should prefer to have Mr. 
Belt speak about, because our firm has no contract except through 
Mr. Belt. 

Mr. Cravens. I want to say right now that I think the amount of 
fee fixed here by the Secretary of the Interior is ridiculous. That is 
my opinion of it. 

Mr. JdoRSE. Knowing what I do about the case, I think it is a 
great plenty. 1 think it is very liberal compensation. 

Mr. Cravens. I think that in a matter of this magnitude it would 
be worth as much as that if you had not done anything. 

The Chairman. Is there anything further? 

Mr. Merillat. No, sir; I think we have covered the matter. 

Mr. Belt. I should like to say as to Mr. Morstad, as that question 
is up, that this matter came to me on the suggestion of Senator 
Nelson. When I wrote to him, he sent my reply to Mr. Morstad, 
simply saying : "I am not from that State, and I do not think I ought 
to be bothered with it, nor to interfere. I think the Indians had 
better employ Mr. Belt, as he seems to differ with the department." 
Mr. Morstad sent that to me; but he said: "These Indians have no 
money. You will have to take it on a wholly contingent fee." I 
received a similar letter from Chief Charles Kisheck. I wrote to the 
chief: "Make your contract and send it to me." They made the 
contract and sent it to me; and I have never said or written a word 
to ]\Ir. Morstad, and Mr. Morstad has never said or written a word 
to me, on the question of compensation for any services rendered by 
him — not one word. I have all of his correspondence at my office, 
and you are perfectly welcome to see the whole of it. He has never 
uttered a word about compensation. When the roll was to be made, 
I suggested to the enrolling officer that was sent out by the Interior 
Department: "You will facilitate your work if you will employ Mr. 
Morstad to go along with you to make this roll. He knows those 
people; he knows where they are, and he will help you." He did so. 
That is all there is about it. When this matter is settled, if I am 
awarded my fee according to the contract, I propose to ofl'er Mr. 
Morstad suitable compensation for the aid he has given me in the 
prosecution of this claim. 

Mr. Cravens. I should like to ask you what steps you have taken. 
What have you done in this matter? You say you have had it in 
charge since 1902, I believe? 

Mr. Belt. A summary of services rendered is given in the brief we 
have placed in your hands, beginning at page 25. and we can show 
them in full. Let me state the different steps: You will see that 
Senator Quarles was notified by the Indian Office that the Indians 
had no claim. You have seen that document. There is his letter 
(handing Document No. 185). I had to go to Senator Quarles, when 
I took hold of the matter, with a memorial, prepared after long study 
and res(\>irch, and ask him to introduce it. It took me six months to 



ADJUSTMENT OF CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 29 

convince Senator Quaiies that these people had some rights, before 
he would even introduce that memorial so as to get this thing started. 
After he did introduce that memorial he wrote me a letter sajing: " I 
have introduced your memorial for you now, but you must do the rest 
of your business with Mr. Brown." I had not seen Mr. Brown on 
the subject at all up to that time, I think. I then addressed myself 
to Mr. Brown, who re])rescntcd that district. . 1 had to labor with 
Mr. Brown for a long while (I do not know but what it was two ses- 
sions of Congress) before I could convince him that he ought to take 
up the matter. I convinced him, and he took up the matter, and 
reported the bill dra\\m by me and introduced by him, authorizing 
tlie enrollment of the Indians and the making of this account con- 
tained in Senate Document No. 830, wSixtieth Congress, first session. 
Then my work was practically susjiended, except to advise and corre- 
spond \\ith the people out there that the enrolling officer was coming, 
and to })e ready to receive him, and to give their names. My work 
was all done by correspondence. 

Mr. Ckavens. What has taken all this time? What has caused 
all this delay from 1902 to 1909? 

]\lr. Belt. Oh, I had to take so much time with Senator Quarles, 
gathering and furnishing him information. I said ''six months" — 
I spent six months there persuading him to introduce the m^orial, 
and then I spent about two years with Mr. Brown and hiyfeubcom- 
mittee before I could get the bill reported, the department having 
made an adverse report upon it. Of course, when the bill was 
reported it took some time to get it through Congress. I think it 
took two sessions to get it through Congress. I think the most of 
the delay has been up here. 

Then there has been another consumption of time: The Indian 
office, or the department, sent out an inspector to make the rolls, 
and he came back with four hundred and some odd people as the 
whole number of these people. The Indian office said: ''That is 
not right; we know it is not right." I did not complain about that. 
I was willing to come up here with that. I knew there were some in 
Canad^. The Indian office would not accept it, and came here to 
Congress and asked Congress to give them money to send another 
man out to make the enrollment complete before stating the required 
account; and when Congress refused to give the money I appealed 
to the Secretary of the Interior (the present Secretary'') and said to 
him: "You have got the law for making this enrollment; why can 
you not send somebody there to make it?" And he did authorize 
and direct the Commissioner of Indian Affairs to send somebody 
there to make this enrollment, and it was made. 

Mr. Cravens. You have performed about the same .services as 
are performed in all cases of this kind ? 

Mr. Belt. Yes, sir. 

Mr. C^ravens. What is the usual compensation? 

Mr. Belt. I was in the Cherokee case, and there I represented the 
Cherokees in North Carolina. I was there from 1894 until the case 
was decided, in 1904, I think — something like that. I had a contract 
for 15 per cent. The Secretary of the Interior approved it for 10 per 
cent, and when I was about half through with my work and was in 
the court the Indians renewetl my contract, and he refused to approve 
it. I came up here and asked Congress to send me to the Court of 



30 ADJ USTMENT OF CLAIMS OF POTTAWATOMIE INDIANS^ WISCONSIN. 

Claims aiul let the Court of Claims decide what my fee should be. 
In the meantime the Indians said, "Our case has gone to the court, 
and you are doino; more work than we expected; you shall have 
15 per cent for your work." And they gave me an additional con- 
tract, and the Court of (^lainis awarded me 15 per cent. 

Mr. Cravens. What is the usual fee, though? Not yours, but that 
ordinarily allowed, 

Mr. Belt. About from 10 to 15 per cent. I would say this: There 
is a law of Congress wliich regulates the fees in Indian depredation 
cases, and it says that no fee in excess of 15 per cent shall be allowed 
except the court shall decide that it is an extraordinary case. That is 
the law in Indian depredation claims, act of March 3, 1891, section 3. 
(26 Stat., 854.) 

Mr. Merillat. You asked with reference to the delay. I think 
two years of the delay was caused by the fact that the Indian office 
was constantly fighting us, and was constantly reporting that there 
was no claim on the part of these Indians, and that they had for- 
feited all of their rights. Then the Senators and the Members of 
Congress from the States were constantly coming back with the 
statement: "Wliy, the Indian office is against you; you surely can 
not have any claim." In other words, it was an uphill task, and 
you had to go first after one and then after another and get them to 
act. 

Mr. Cravens. Have you any other citations here on this authority 
of statutory law as to the payment of annuities except the one you 
gave me — Thirteenth Statutes at Large, 172 ? 

Mr. Belt. I think there is one in 1847."^ 

Mr. Merillat. We can get you several decisions of the Comptroller 
of the Treasury. 

The Chairman. If there is nothing further, the committee will 
adjourn. Is there anything further to put in the record, Mr. Cravens? 

Mr. Cravens. Not that I know of, 

Mr. Kappler. We can bring you up a great mass of documents 
that we have that will show these, various matters and the services 
that we have rendered. 

Mr. Cravens. No; you do not know what I mean. This is as to 
the payment of annuities — as to their payment per capita under these 
same treaties, the same kind of treaties that you are proceeding under 
now. 

Mr. Kappler. Yes, sir. 

Mr. Cravens. And what, if any, provision has heretofore been 
made in other cases where all of those of the tribe have not received 
their pay — what became of the rest ? 

Mr. Belt. You have got it right here. 

Mr. Cravens. In this case, I know, it was all paid out. 

Mr. Belt. No ; I can give you a decision of the Comptroller of the 
Treasury — I have not got the exact number, but I will send it to 
I you — saying that where a man is born a member of the tribe he is 
{born to a right, and he can not be de])rived of his annuities. If he is 
I absent, his annuities must be retained for him in the Treasury until 
'he makes his application for them. That is in volume 12, I think. 

Mr. Kappler. I want to say that in the Loyal Creek case Congress 
fixed a fee of 15 per cent, which involved not half as much work as 



HD 1.4 « 



ADJUSTMENT OV CLAIMS OF POTTAWATOMIE INDIANS, WISCONSIN. 31 

we have perfonned in this case, and this was done with the a|)j)r()val 
of Senator Phitt, of Connecticut, who was considered one of tlie best 
friends the Indians ever had in (\)no;ress. 

Mr. Merillat. We want a fee fixed, but we do not want it iixed 
without a hearino-. 

Mr. Kappler. That has been our dilhcuUy. We (Ud not liave a 
hearing before the department report was made, and 1 doubt if the 
Indian Office would have made such a report if it had heard our 
exphmation of services rendered. I am confident Mr. Leu)>p, if he 
had been here, would have been more reasonable. We have all the 
facts in writing- — all the services that have been j^erforined by us. 

(The committee thereupon adjourned.) 



Washington, D. C, F/hniiiri/ 1, 1909. 
Hon. Joseph Howell, 

Chairman Subcominitlfe, House of Representatives, 

Washington, D. 0. 

Dear Sir: Pursuant to the promise made to the committee to furnish them, in 
connection with the Pottawatomie Indians, of Wisconsin, bill, with a reference to a 
decision of the Comptroller of the Treasury with respect to the right of each IncUan 
to secure his per capita share of any tribal annuities or other payments, we desjre to 
cite you to the decision rendered by the comptroller Februarj' 18, 1907, n^/^v the 
head of "Annuities to minors of Osage Indian tribe," published in volume 13 of Deci- 
sions of the Comptroller of the Treasury, page 552. In the course of this opinion, 
the Comptroller of the Treasury says: 

"An Indian who is entitled by membership in a tribe to share in the annuities or 
other communal benefits of the tribe does not lose such right by the failure of an Indian 
agent or other officer to enroll him for any particular payment. The right is inherent 
ifl every born member of the tribe from tJae date of bkth. The appearance or absence 
of the name on the roll is only prima facie evidence. If the name of an Indian entitled 
to enrollment and payment "be omitted from the roll for one or more payments, either 
by mistake of the agent or in pursuance of erroneous instructions, his right to the pay- 
ment or payments is not thereby extinguished; but upon correction of the mistake, or 
countermand of the erroneous instructions, he may claim and have allowed the pay- 
ment or payments which have been withheld by his nonenroUment. His status as to 
payment is the same as that of an annuitant who has not been paid at the regular time on 
account of absence, sickness, or other cause. ' Such unpaid shares will be held subject 
to the claim, through the Indian office, of the parties to whom they may be due, or 
the agent may be instructed to pav them at the next annuity payment.' (Sec. 152, 
Reg., 1894; see also sec. 154, Reg., 1884, and par. 15, sec. 324, Reg., 1904.)" 

Speaking further on this same matter, the comptroller's opinion said: 

"Such right of enrollment and payment was inherent from date of birth, and is in 
accordance with immemorial custom in Indian annuity payments." 

With respect to the fees, we desire to call to your attention the fact that in the Indian 
depredation cases it was recognized by Congress that a fee of 15 per cent was proper to 
be paid to representatives of the Indians. There were a great many of these cases 
and they did not involve, as does the Pottawatomie claim, the upsetting of a long 
established but illegal departmental denial of treaty rights. 

In the act of Congress approved March 3, 1903 (32 Stats., 995). Congress appropriated 
$600,000 for the payment of the claim of the loyal Oeek Indiau.s and directed the 
payment to the attorneys there engaged of 15 per cent of the amount of the claim. 

in the matter of the Choctaw and Chickasaw nations of Indians (26 Stats., 1025) 
$2,991,450 was appropriated to pay these Indians for the claim the (.'hoctaws aijd 
(,'hickasaws had in certain lands the Chcyennes and Arapahoes were occupying^ A 
compensation of 25 per cent was allowed the attorneys. ^ 

In the matter of the claim of the Pottawatomies in Michigan and Indiant/for the 
recovery of unpaid annuities under sundry treaties from 1795 to 1S4G, I'i^er cent 
was awarded the attorneys. 

In the matter of the contract between the Seneca Indians of N.ew York and James 
C. Strong to recover a large section of land under the treaty of J 826, 10 per cent, 
together with costs and expen.-ies, was allowed. 



32 Ar)Jus■|■ME^•'^ oi-- claims of Pottawatomie Indians, Wisconsin. 

The case of Lainon t . McKee and McKb^' v. Cocliran (IS D. ('. Reports, 416) shows 
that these attorneys recovered a fee of SOper cent on a Choctaw claim amounting to 
nearly $3,000,000/ 

In Cherokee Nation <j. ^le United States (40 ('. Cls. R., 252) compensation was 
allowed the attorneys of 15 per cent of the recovery. 

In the claim of the Kaw Indians allowed by the Indian appropriation bill of 1905, 
to the extent of $155,000, 10 per cent was allowed. 

In the matter of the Sisseton and Wahpeton bands of Sioux Indians (scouts and 
soldiers) in which Congress made an award of $545,178.37, the attorneys were allowed 
a fee of 10 per cent. 

In the case of the Turtle Mountain band of Indians of North Dakota, Congress made 
an award to the Indians of approximately $1,000,000 and fixed the attorneys' fee at 
$50,000. This case involved little work, whereas the Pottawatomie matter has been 
a long labor. 

In the matter of the claim of the archbishop of the Catholic Church of California 
against the Government of Mexico, which resulted in what was known as the "pious 
fund " arbitration award at The Hague, in which the archbishop was awarded the sum 
of $1,400,000 Mexican, or about $600,000 American, in which arbitration one of the 
present attorneys for the Pottawatomies was engaged the attorneys had a contract for 
and there was awarded to them 25 per cent of the recovery, which recovery, as stated, 
was about $600,000 in American money. 

There has not been a single step taken in this case that was not taken either bj^ the 
attorneys themselves or taken, whether in Congress or out of Congress, at their sugges- 
tion. They have constantlj' pushed the matter, and the documents in their posses- 
sion will show it. 

They are willing either that Congress shall fix a reasonable fee based u}:jpn services 
rendered and results obtained after a full hearing and investigation of the same by 
Congress, or they are willing that the court shall determine the fee after proof of serv- 
ices, as Congress may elect. They protest against any attempt to name a fee by the 
Indian office without giving them a hearing, and especially where the same repudi- 
ates the action of the Indian office at a time when the claim was considered desperate. 
Yours, respectfully, 

R. V. Belt. r- < 

Kappler & Merillat. J 



O 







A 



^. 




o V 




NSJ((y«"^ 



0' 



, C- 




.^<^ 



'^V / "^^ ^' 







^t)^ * 







^ 



^■^^^■^ ^ -^ ^^»f,*^ ^\^-r^^^\,^ --, '^^t^^ 




0^. 



.^"^^ .^J^"*.'^-^ 




.-ICJ, 



\0 -T-, 





r^.=t. 




r^<;t-. 




o ^^ 








<^ ''.•«* .. 










//^i'X >°.V;z^'>.. ..^".-^^^"-^ 








^'^ ^ 



0' 



^?^ 



'bV^ 



4 O DOBBS BROS. '){; ^ ^.0 -7*, 

•^ -^ LIBRARY BINDING ^ ^ ^ 5J*^ « 






APR "4'* ,0^ -V ^^-V.'' .^^ 

^^L ^; ST.JiUGUSTINE ^ ' ' 



'JAK 



